Icebergs and Sea Monsters inTreacherous Legal Seas

Volume 40Number 4

By
Gerry Riskin

About the Author

Gerry Riskin is an internationally recognized lawyer, author, management consultant and cofounder of the 30-year-old global legal consultancy Edge International. A graduate of commerce as well as law, he has practiced since 1973 and was the managing partner of a firm in Canada and Hong Kong. Riskin is actively serving clients in Australia, Canada, Europe, India, Latin America, New Zealand, South Africa, the U.K. and the U.S.

The captain of the Law Practice of Tomorrow—one of the sleekest, fastest, and most technologically advanced vessels ever to sail legal waters—called together her ship’s newest recruits to recount the history of the legal seas and offer a new decree. This is what she told them.

Centuries ago, small groups of lawyers did their best to provide outstanding service to their clients from small vessels, powered only by wind and human energy. Their boats were sturdy, threats were few, and the lawyers endeavored to deliver top-quality legal products and services to their clients.

However, the Icebergs seemed to grow each year in size and number, and chameleon-like Sea Monsters, often invisible, began to disrupt once-calm seas with ever-increasing intensity. Few have ever laid eyes on a Sea Monster, and many will tell you they are nothing but a Loch Ness myth. But the fact is, they are as real as debentures and exist in ever-greater numbers in the seas beneath us.

As time passed, talented officers built ever-larger vessels, known collectively as the Legal Fleet. The Fleet had a profitable history: Until recently, clients paid whatever the ships’ officers asked and, in exchange, they received gold-standard service. Crews would inspect the legal cargos frequently, spray regularly with insecticides, check and recheck the bindings and engage in countless other protocols. Perfection became the goal—whatever it took.

A few decades ago, officers realized their vessels would prosper even more if they tracked and calculated every effort expended, and asked the clients to pay accordingly. This caused profits to soar, and officers grew accustomed to earning more money each year. Indeed, officers began to feel that such increases were an entitlement. While they knew that some of their protocols were a little over the top, they reasoned that taking chances was ill-advised, especially since costs were all passed on to clients. (Sometimes the value of the legal cargo did not warrant the cost of shipping, but alas, what were the officers to do? Take a risk? Sacrifice reputation? Unthinkable!)

In more recent times, however, clients began to question pricing decisions and what they perceived as high legal costs. For a while officers successfully “pushed back,” asserting that their methods optimized safety and always “delivered the legal goods.” In fact, captains boasted that “we leave no stone unturned in ensuring safety and successful delivery.”

INVASIONS: REBELS AND PIRATES

As technology advanced, some enterprising crew members saw that, indeed, shipments could be more effectively and efficiently delivered by smaller customized vessels designed for particular kinds of legal cargo, thereby reducing loading and unloading times and fuel costs. These customized vessels, collectively nicknamed the Legal Rebels, charged lower fees but still garnered high margins.

In the meantime, legislation had evolved over the centuries to restrict entry onto the legal seas to only those possessing special licenses. Alas, Pirates spied the booty traditionally enjoyed by the Fleet, and more recently by the Rebels, and cleverly devised ways to encroach upon the legal domain. Pirates call legal cargo by names that do not include the word “legal,” and they break down traditional legal products into small parts and ship those parts with a generic appearance—thus avoiding the need to use authorized and licensed vessels or crew.

The Pirates are commoditizing the legal industry by building huge automated ports and large automated vessels that require very few crew members, none of whom are licensed and therefore are employed at lower cost.

When the authorities board Pirate vessels, they are dared to find a “legal” label. When the authorities prosecute anyway, they rarely succeed—and have grown discouraged. The Fleet and Rebels are perceived to be fat, rich, uncaring and aloof. So when they complain about the unauthorized practices of the Pirates, public sentiment favors the Pirates—because their methods reduce costs.

THE TIDE IS TURNING EVER MORE VIOLENTLY

Advances in technology are leading to whole new legal-shipping paradigms. Bright minds are exploring questions such as:

What if we could move legal cargo from one place to another without using the legal oceans at all?

What if we could offer the legal cargo at the place it was required by assembling it where needed?

What if a 3-D printer could create that legal cargo?

What if crew members and cargo were monitored constantly on the Internet so that the client could see its progress any time, day or night—like a child in day care?

What a Sea Monster all this would create to threaten traditional vessels!

Most Fleet and Rebel captains are not that familiar with 3-D printers. In fact, many are still upset about being dragged into training classes to learn about creating Word documents and Excel spreadsheets—and are cynical about new and rapidly evolving technologies of any kind. While many younger crew members prefer texts to email and voice mail and love the latest applications, many officers do not know the meaning of social network entities like Jelly, Snapchat and Vine. The notion of getting news from Twitter makes no sense to them. When they saw that Facebook had purchased WhatsApp for $16 billion, they declared it “insanity.” They continue to pocket their entitlements and hope for the world to return to normal.

DIVIDED, THEY SINK

The profitability of many of the old, established vessels has faltered, leading to crew layoffs. Some have been taken out of the water altogether. Clients press for discounts and threaten to go to the Rebels or Pirates. Most officers are ill-equipped to negotiate and easily acquiesce to requests for discounts. Many officers think that agreeing to a slightly smaller discount than the client requests is a “victory.”

Today, our legal world is rudderless and fragmented, with too many disparate vessels on the sea. When captains come together to discuss the Icebergs and Sea Monsters, they are leery about sharing competitively sensitive information for fear of losing position. Disorganized and uneducated about evolving business and technology, only a few recognize their vulnerabilities. Most refuse to see them. After all, they desperately hope, the Fleet has been viable for centuries and no insignificant short-term aberration fueled by geek-college-student Pirates should run it aground. “Icebergs are avoidable, and Sea Monsters are not real,” they assure one another.

But the sinking of some vessels has struck fear into the hearts of many officers. “How can this happen?” they ask. In some cases, promises of higher compensation began to woo valued officers to competing vessels, leading others to follow suit. Soon, a tipping point was reached, causing the rank and file to lose confidence: The rest abandoned ship in droves. Once the lemming-like departures began, officers had no choice but to liquidate—and down went their vessels, irrespective of longevity or prominence.

SURVIVAL OF THE WISEST

The captain of the Law Practice of Tomorrow explained to her recruits that she was one of those who had seen vulnerability in the context of the Icebergs and Sea Monsters. But she now sees opportunity. She knows well that her crew must quickly learn to detect and neutralize Icebergs and Sea Monsters. If they do so better than their competitors, they will own the seas.

The visionary captain drew up a decree that read as follows:

“We will create a system of early detection. Some of our newest legal crew members, fresh from college, will monitor technology and report any instance of applications designed to enhance delivery to clients. We will also watch other industries and transpose their advancements into better protocols for us.

“We will stop turning over every legal stone and will instead engage with our clients in determining the value of the legal products and services they require, agree on the commensurate appetite for risk and jointly work out more, better-suited protocols.

“We will invent new ways of pricing that offer value for our clients and sustainable profits for us. We will appoint a long-term task force to continuously learn better pricing approaches and algorithms, and its members will teach others internally. We will teach fee-related negotiation skills to all of our officers.

“We will use checklists and become experts at project management for the mutual benefit of our clients and ourselves. We will not waste our time or our client’s money. More importantly, we will create value that our competitors cannot match.

“We will carefully monitor the behavior of our competitors to ensure that we remain ahead of them, and if they transcend us, we will selectively emulate them.

“We will instill in our crews the importance of remaining at the forefront of our vessel’s technology, in which we continue to invest so much. We will offer exemplary training—and those who refuse to attend it (or who believe it is charming not to understand or utilize technology) will be invited to seek a posting on another vessel.

“We know that clients will no longer pay whatever we ask, and our crews can no longer be trained at their expense. The institutions that teach our legal crews must evolve to add the many skills traditionally not learned by crew members until they are on board. But we cannot wait for this evolution. Instead, we will offer this training to our new crew members by furnishing them with the practical skills required to breathe life into our ambitious plans for the future we visualize.

“We will no longer create annual or even occasional navigational charts and plans, leaving execution to the spare time of our officers and crew members. Instead, we will create a living plan and revisit it on an ongoing basis, keeping it resilient, fresh and relevant by making frequent course corrections as required. Of equal importance, we will visibly track the actions and results of all of our crew members as they do their part in executing our plan. If they appear to be headed aft when they should be moving forward, we will expend all necessary effort to correct them. However, those crew members who do not exploit the resources we have given them will be invited to seek a posting on another vessel.

“We leave our compensation system until last because most of our crew members will be primarily motivated by our purpose, their mastery of their tasks and the discretion we allow them to be the best they can be in their own way. It is only when we see our compensation system at odds and ‘in the way’ of the behaviors we want that we will change it—and then only just enough to achieve harmony with our ambition.”

The captain of the Law Practice of Tomorrow finally took a deep breath and said, “Icebergs and Sea Monsters will be ever more present, but this decree demonstrates how we shall detect them and render them harmless, allowing us to thrive on our exemplary vessel. Adhering to this decree will mean much glory for us all, but deviating from it will not be tolerated and will lead to certain expulsion from this vessel.”

One of the young recruits looked out again at the sea that surrounded them and asked, “What of those captains and officers who lack your vision? What will become of their legal vessels?”

Without hesitation the captain replied, “They invite one of three possible outcomes: firstly, they will falter and sink, thus providing fodder for the Sea Monsters; or secondly, they will emulate us, happily ‘raising all water with us,’ as the expression goes; or thirdly, they will transcend us by being more imaginative and creative than we are. They will execute better visions than ours, and we will emulate them.” The captain smiled at her recruits and said, “For our profession’s sake, I hope this third possibility occurs most often.”